The South African Constitution and its malcontents
Is the Constitution permissive or prohibitive of social and economic justice? It is currently in vogue to vilify the Constitution, but it is worth remembering what a constitution can and cannot do.
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14 June 2021
2021 marked the 25th anniversary of the South African Constitution. It was celebrated to be sure, but without much fanfare. Other than a debate in Parliament and a few media features, there has been little else notable that publicly marked the occasion. Perhaps that is fitting, given that the vision of the Constitution is vilified by those meant to vivify it, and its provisions and prescriptions consistently mauled by the women and men meant to be its custodians.
It has become de rigueur to vilify the Constitution – as both a framework and facilitator – that balances citizen agency in relation to state structure and process. There are misplaced expectations on the Constitution, which it in reality, cannot fulfil. That is because the Constitution has no agency of itself. It is a facilitator of citizen agency, a descriptor of state structure, the articulator of a societal vision, an ensemble of values, a procedural guide, a book of rules and a curb on the abuses of power.
The expectations of it, however, are that it itself must enable and deliver justice. To the extent that it is criticised for being “Western” or foreign in orientation – existentially alien – none of the criticisms can articulate what about its concepts and content is alien, Western or foreign.
In instances where the Constitution falls short on enshrining rights, enabling the exercise of citizen agency, promoting state effectiveness and government efficiency, limiting arbitrary (ab)use of power, or punishing impunity, it would be appropriate to criticise the Constitution or change and amend it, when and where necessary.
What is currently in vogue, however, extends beyond criticism – to vilification.
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This is centred on two principal arguments. The first is that the Constitution is premised on an insufficient recognition of past injustices because it does not explicitly mention colonialism and apartheid-colonialism. Because of this silence, it cannot undo the manifest injustices and oppressions arising from those processes of dehumanisation, subjugation, oppression and exploitation. Flowing from this inability, it cannot change society through decolonisation. At best it aims to transform it, a lesser intensity of change.
This inability and incapacity, critics of the Constitution argue, ensures that a Western epistemic, institutional and procedural paradigm is maintained. This does not fully ventilate and articulate African aspirations, concerns, ideals and values. In short, it does not allow for “African sovereignty”. This presupposes that aspirations, concerns, ideals and values cannot be universal. There is a limited truth to this and applies only insofar as societies have particular histories of specific forms of colonisation and oppression.
These can be remedied by policy – redistributive, transformative and empowering – but critics of the Constitution find this to be limiting and unjust. Complete decolonisation is posited as the panacea – without spelling out what a decolonised constitution would look like – even if the criticism of the current Constitution is accepted as valid.
While these critiques value the human, political and socioeconomic rights that the Constitution enshrines – especially those of gender, pro-choice with respect to abortion and of sexual orientation – they argue for a system of parliamentary sovereignty instead of constitutional supremacy to give effect to “decolonisation” – a parliamentary sovereignty which in all likelihood could potentially reverse these very rights.
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Imagine, even if these progressive rights were maintained under a dispensation of parliamentary sovereignty, but without any protections of a constitution, and a parliament of evil-notables were to pass laws like the once mooted Traditional Courts Bill, or the Protection of State Information Bill – both of which could have had severe debilitating implications for the practices of democratic citizenship, if passed, and had there not been a constitution that emphasised and enshrined equality before the law, rights to access information, and fairness as a value and principle.
It is in any event arguable that South Africa does in fact enjoy a degree of parliamentary sovereignty, subject only to the values and processes in the Constitution. In other words, Parliament can resolve, determine or pass law or prescribe policy, oversee or call to account any person or institution – on any issue – as long as it does not contradict values in the Constitution. There is, moreover, nothing in the Constitution that inhibits African or indigenous sovereignty and none of the criticisms of constitutional supremacy point to anything in its values or processes, that does so, or that inhibits Parliament in any way.
Of course, the South African Constitution is not immutable or immune from criticism.
It is both beautiful and bewildering in its range and its depth, even if we can recognise that contradictorily, it is both inanimate and instrumental. In its inanimacy, it creates structure and process. In its instrumentality, it creates function and agency.
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It serves very many useful purposes. Its most fundamental and primary one is in normatively defining politics and government as democratic, in ensuring space for participation and in defining the political community. Here it is both inclusive and progressive, but explicitly anti-racist, anti-sexist and democratic. These have of late come under assault as being non – rather than anti – racist. Firstly, the dichotomy and duality of inclusivity and exclusivity that has characterised South African history on the basis of race, which the Constitution tries to reverse, has reappeared. Who is included, as constitutive of the political community and on what terms, has increasingly come into question, ranging from those expressive of the emergent “decolonialist mood” to recidivist race nationalists and purported “radicals”.
Increasingly, this discursive bent appears to wish to write whites, and in some cases other racial minorities – despite its political use of the term Black as an inclusive signifier of political belonging – out of the political community, except perhaps as taxpayers. In doing so, it unwittingly reifies the social construct of race, giving it conceptual salience and significance that was on the wane, and reintroducing artificial distinctions between minorities and majorities. Unwittingly, these appear to compensate for the political, policy and economic failure(s) of government performance rather than explain why redistributive and empowerment failures are attributable to the Constitution.
The second major noteworthy thing about the Constitution is its expression of progressive, forward-thinking ideas on rights, liberty, freedom and equality – inherent as they are in every person – rather than conferred or extracted from those with power, authority and influence.
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Compared with inherited feudal ideas that concentrate executive authority and power (ideas that are mistakenly suggestive of born out of “tradition” and custom), the South African Constitution disperses these vertically and horizontally, and tries as far as possible to devolve it to people. As such, it creates a separation of powers and functions in the state, which is an aggregator of authority, and gives the representatives of the people in Parliament not only the power to make decisions mediated through competitive deliberation but the right to oversee (oversight) and demand account from those who exercise power and authority. The representatives of the people themselves, in this system, are ostensibly meant to account to, and be responsible and responsive to, the people who elected them.
The supposed ideas inherited from “custom and tradition” appear to be anathema to these virtues, permitting an excessive concentration of authority and the fusion of law, of rule-making and the executive authority and power to administer and implement in a single person, entity or institution – usually ones on preference based on “identity” features. Instead of imposing constraints and limits on powers and functions, and separating them, these ideas do not envisage curbs on them and wish to grant those in authority unrestrained free rein, a recipe for authoritarianism and impunity.
People in positions of power, despite the Constitution and its provisions, or rather in spite of it, have behaved with absolute impunity, suggesting that over time, these values as rights – of oversight and accountability – will diminish as they lose social currency. In an arena in which they have lost social cache and cultural currency, it is not long before they lose political support and become sacrificed to the expedient politics convenient for the moment.
While core political rights are enshrined in the Constitution and appear to be protected, increasingly, South Africa has moved from a society of political intolerance to outright political thuggery. Political assassinations are not a rarity, even if obscured within the mire of high levels of crime and criminality. The enjoyment of political rights is uneven as shack dwellers’ movement Abahlali baseMjondolo and myriad other social and civic movements would attest.
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Socioeconomic rights are enjoyed even more unevenly than political ones – thanks to government dysfunction, malfeasance and laxity – and to the extent that impoverished and vulnerable people get to access them, it is because of the work of non-governmental organisations, social movements and lawfare, not because of government extension.
To be sure, the Constitution introduces conflicts and contradictions. For example, some sections of the Constitution privilege accountability, oversight, responsiveness and participation as primary public virtues, while others foreground representativity and representation. In codifying political systems, or creating institutional mechanisms for policy deliberation, formulation, execution and administration, this can create incoherence and debilitating inertia, but at least there are mechanisms available for the resolution of these through constitutional and legal interpretation, and the setting of precedents.
What the Constitution is unequivocally premised on is the protection of national sovereignty through giving agency to popular sovereignty (the wishes of the people). Where this has failed, it has been owing to the erosion and undermining of its institutions and their processes. South Africa has poor politics. Not bad laws, or a flawed Constitution.
The Constitution is meant to work by providing the rights required for citizens to express agency and the state to address concerns of social and economic injustice. Equally, the Constitution provides space for agency but mala fide agency and intent through criminal law, the common law and the codification of structures, processes, procedures and institutions for whom limits of power and authority are prescribed and proscribed.
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No matter how much mischief, manipulation and maladministration has gone before, independent and robust institutions and the faithful and sincere application of the rules are meant to curb irregular and excessive executive power and authority. It has failed to do so for close on a decade through the abuse of authority, manipulation of processes and institutional debasement – if not flagrant corruption.
The rule of law appears to be clawing its way back to this routine. But the level of manipulation of institutions and exercise of undue influence witnessed in South Africa continues unabated and is repeatedly tested to the limit, and independent constitutional institutions may whither over time, rendering South Africa susceptible to the mercy of the predatory unctuous, and the unscrupulous.
Excessively high levels of corruption and civic immorality in state and society bear testimony to this. Even the robust rules and strong institutions cannot withstand this level of sustained manipulation, nor can they solve all of our seemingly unending problems of lawless behaviour, unethical conduct, poor politics and inappropriate policy.
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Curiously, no matter how much protestation there is about the Constitution as a hindrance to change, there is demonstrable evidence that it actually works – on a series of socioeconomic rights jurisprudence, oversight and accountability, and the restraining of the extraordinary and arbitrary abuse of power, and authority.
But the Constitution can only do what conceptually a constitution can. It cannot provide socioeconomic or other goods, which increasingly is the expectation of it. More and more, it appears that people seek to address questions of the economy, transfer of wealth, redistribution and empowerment – the broader concerns of a social justice agenda – through the Constitution. Failures here are not of the Constitution but of politics, policy, government and governance.
There is an expectation for the Constitution to do what most properly, politics and government ought to do. One of these is to have the Constitution define the political nature and character of the state, and define the policy postures of the government. It seeks that the Constitution prescribe an ideological orientation, which the Constitution properly leaves for citizens to decide by electing governments that will give an ideological and political nature and character to the state through policy and performance. The South African Constitution is permissive of justice and redistribution. It is poor politics and woeful government performance that is prohibitive of it.
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No constitution can codify every aspect of public life, nor can it instrumentalise redistribution and justice. The Constitution can only create the framework that facilitates justice and redistribution. As retired deputy chief justice Dikgang Moseneke once remarked: “Constitutions are never perfect but ours is as good as it gets.”
Ebrahim Fakir is the director of programmes at the Auwal Socio-Economic Research Institute and serves on the board of directors of Afesis-Corplan, a development non-governmental organisation in the Eastern Cape. He is also a member of the Council for the Advancement of the South African Constitution.
This article was first published in Polity. This is a lightly edited version of the original.
